Ledwidge v. St. Louis Transit Co.

• Decision Date: 31 March 1903
• Court: Missouri Court of Appeals
• Parties: LEDWIDGE v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 1008

LEDWIDGE v. ST. LOUIS TRANSIT CO.^*

Court of Appeals at St. Louis, Missouri.

March 31, 1903.

STREET RAILROADS — COLLISIONS WITH VEHICLES — INJURIES TO PERSONS ON TRACK — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — EXCESSIVE SPEED — ORDINANCE.

1. Defendant's street car ran into plaintiff's hack while he was attempting to cross the track. He testified that he had an unobstructed view of the car, which was about 150 feet away when he first saw it, and was approaching at a speed of 20 miles per hour; that he did not stop or whip up his horses until the car was within 40 or 50 feet of him. There was nothing to prevent him from stopping until it passed, and he could have crossed in safety, had he whipped up his horses when he first drove on the track. Held to show contributory negligence, precluding his recovery.

2. Where plaintiff saw a car about 150 feet away, approaching at a speed of 20 miles per hour, but did not stop or whip up his horses until the car was within 40 or 50 feet from him, and it struck his back before he got across the track, and injured him, he had no right to assume that those in charge of the car would regulate its speed to conform to that limited by the ordinance.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by John Ledwidge against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Reversed.

Market street, in the city of St. Louis, runs east and west, and has in its center a double street railway track, over which the defendant corporation operates its cars by electric power. The street is crossed at right angles by Seventeenth street, running north and south. The plaintiff is a carriage driver of 40 years' experience in said city. On November 29, 1902, he was driving his carriage on Seventeenth street in a funeral procession moving south. His vehicle was the rear one in the procession, and was from 16 to 18 feet behind the next carriage in front. Plaintiff testified that when he reached Market street he looked west, and saw a car coming on the south track at a speed of about 20 miles per hour, from 100 to 150 feet distant from him; that he judged he "had any amount of time to cross" the street before the car would arrive; that he did not stop, but drove on in a walk until his horses were over the south track, when he saw the car was close upon him; that he then quickened the speed of his horses, but not in time to clear the track, and the kind wheel of the carriage was struck by the car, and he and the carriage were thrown against a trolley pole with great force; that he received severe injuries to his hip and other portions of his body, and his carriage was badly damaged. On cross-examination the plaintiff testified as follows: "Q. Now, when you drove into Market street, following the funeral procession, how far away was the car, if you saw it, that finally collided with your carriage? A. The car was about 150 feet west of me; it was about a half block. Q. By the Court: When you drove into Market street? A. Yes, sir. Q. On Seventeenth? A. Yes, sir; and the car went half the next block before he could stop it — before he tried to stop it. Q. How were you driving as you drove into Market street, and across the first track and into the second track? A. Very close to a walk. Could not go faster, because there was a carriage ahead of me. I could not do that. I could not run into people. I had to keep out in line with the procession. Q. How far had your carriage gotten cross the track before this alleged collision took place? A. I was leaving the south rail. In fact, it hit the hind wheel of the carriage. Q. How was the car running when it struck the hind wheel? A. It was running east. Q. How was it running with reference to speed? A. It was running at a rate of about twenty miles an hour, in my opinion. Q. Now, when you turned onto Market street, did you look east and west for the cars that might be approaching? A. Certainly I did. Yes. Q. And how far away you say you saw the car coming from the west? A. To the best of my opinion, it must have been from 100 to 150 feet away from me. * * * Q. Now, when you drove on to Market street the car was between 100 and 150 feet away? A. Yes, sir; fully that. Q. You saw the car coming? A. I did. Yes, sir. * * * Q. Over the track that you had to cross? A. Yes, sir. Q. By the Court: Well, did you look for the car from the time you got into Seventeenth street until you drove on the tracks? A. I did, sir. Yes, sir. Q. by Mr. Jourdan: Then you knew about the rate of speed it was approaching? A. I did, sir. Q. And notwithstanding that you drove upon the track? A. I was — Q. Just answer my question. Notwithstanding your having seen the car coming? A. Yes, sir. Q. Observing the speed? A. Yes, sir. Q. You drove upon the track? A. Yes, sir. Q. Upon the theory that you could get across the track before the car struck you? A. Yes, sir; I had plenty of time. * * * Q. And you drove at a walk across Market street? A. I did. Yes. To the last rail. I had to do the best I could to get off of it. Q. Well, your team was walking until you got to the last rail, you say? A. Yes, sir. Q. And there you quickened them up, did you? A. Yes, sir; but I could not go very far. I could not quicken up very far, because I had catched the carriage ahead of me. Q. The carriage ahead of you kept you from getting along faster? A. No; it did not keep me from getting along faster. I could not pull out. Q. Well, what did you mean when you said you could not go faster for the carriage ahead of you? A. Well, the funeral procession was not going any faster. Q. And you had caught up with this carriage ahead of you, had you? A. I was the same distance from it all the time. Q. Well, then, it was not in your way? A. No; it was not in the way. Q. And there was nothing to hinder you from driving faster? A. Nothing. No. Q. Nothing obstructed your view either up or down Market street? A. No, sir; there was nothing to obstruct my view. Q. Was there anything between you and the car? A. Not ever that I seen. No, sir; not a thing that ever I saw. Q. Not a thing that you saw between you and the car? A. Not a thing that ever I saw. No, sir." The occupants of plaintiff's carriage were called as witnesses for him. None of them saw the car until it was within 50 or 60 feet of the carriage. One of them testified that the car was running at a speed of about 15 miles per hour; another, that it hit the carriage "like a cannon ball"; and several of them testified that the car did not stop until it ran 70 feet or more after it struck the carriage. Those who saw the motorman said that he did nothing at all to stop or check the speed of the car. Plaintiff produced evidence that there is an up grade on Market street from Twentieth to Sixteenth street, and that a car running east on that street between Twentieth and Sixteenth streets at a speed of 15 miles per hour could be stopped by the use of the brake in 60 feet, and with the reverse in 30 feet. The vigilant watch and speed ordinances were admitted in evidence. The defendant offered countervailing evidence, which, if true, exonerated the defendant's servants in charge of the car from all blame for the accident. The verdict and judgment were for the plaintiff. After the usual motion for new trial was overruled, defendant appealed.

Boyle, Priest & Lehmann, for appellant. A. R. Taylor, for respondent.

BLAND, P. J. (after stating the facts).

1. At the close of plaintiff's evidence, and again at the close of all the evidence, defendant moved the court to give the jury a peremptory instruction to find for the defendant. The refusal to grant these motions is assigned as...